State v. Turner

237 S.E.2d 318 (1977) 34 N.C. App. 78

STATE of North Carolina
v.
Edward Steve TURNER.

No. 7729SC246.

Court of Appeals of North Carolina.

September 21, 1977.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Jo Anne S. Routh, Raleigh, for the State.

Donald F. Coats, Marion, for defendant-appellant.

BRITT, Judge.

By his first assignment of error, defendant contends that Judge Baley erred in granting the State's motion for continuance after Judge Ervin had ordered that the case be tried during the August session of court in Rutherford County or be dismissed by the State. The assignment has no merit.

Defendant made his original motion for a speedy trial under G.S. 15A-702 on 29 April 1976, some 31 days after the Court of Appeals had granted him a new trial. On 21 May 1976 Judge Ervin, in response to defendant's motion, ordered that defendant be tried at the August Session of the court or that the case be dismissed. In the order Judge Ervin cited G.S. 15A-711 as supporting authority for the motion and order.

Under G.S. 15A-711(c) provision is made for the speedy trial request to the solicitor by a defendant who is confined in an institution in this State pursuant to a criminal proceeding and who has other criminal charges pending against him. This statute provides:

"15A-711(c) A defendant who is confined in an institution in this State pursuant to a criminal proceeding and who has other criminal charges pending against him may, by written request filed with the clerk of the court where the other charges are pending, require the solicitor prosecuting such charges to proceed pursuant to this section. A copy of the request must be served upon the solicitor in the manner provided by the Rules of Civil Procedure, G.S. 1A-1, Rule 5(b). If the solicitor does not proceed pursuant to subsection (a) within six months from the date the request is filed with the clerk, the charges must be dismissed."

The quoted statute did not give Judge Ervin the power to require a trial at the August session or order a dismissal. The statute requires that the request be served on the solicitor (district attorney) who then has six months to proceed.

Defendant argues that Judge Ervin's authority was not derived solely from this statute, and that one superior court judge cannot overrule another superior court judge.

Although the general rule in civil cases is that ordinarily one superior court judge cannot overrule another superior court judge, 3 Strong's North Carolina Index 3d, Courts § 9, p. 587, this rule has no application to an interlocutory order which is issued in the discretion of the trial judge when there is a showing of changed circumstances. Calloway v. Ford Motor Co., 281 N.C. 496, 189 S.E.2d 484 (1972); Moore v. W O O W, Inc., 250 N.C. 695, 110 S.E.2d 311 (1959); Bland v. Faulkner, 194 N.C. 427, 139 S.E. 835 (1927).

The same basic principles apply in criminal cases. In State v. Jones, 278 N.C. 259, 179 S.E.2d 433 (1971), the court held that a defendant would not be allowed to withdraw a guilty plea after it had already been accepted by another judge absent a showing of fraud, duress or undue influence. But in State v. McClure, 280 N.C. 288, 185 S.E.2d 693 (1972), the court held that a second judge could in his discretion accept the defendant's guilty plea which had been rejected by another judge if circumstances would then support the plea.

The key points are (1) determination of whether there is an interlocutory order rather than a final decision, and (2) whether there is a sufficient showing of a change in circumstances to justify modifying the prior order.

On the question of interlocutory orders, North Carolina case law has provided the following rules. In Greene v. Charlotte Chemical Laboratories, Inc., 254 N.C. 680, at page 693, 120 S.E.2d 82, at page 91 (1961), the court stated:

"An order or judgment is merely interlocutory if it does not determine the issues but directs some further proceeding preliminary to final decree. Such an order or judgment is subject to change by the court during the pendency of the action to meet the exigencies of the case. But an order or judgment which affects some substantial right claimed by a party may not be modified or vacated by another judge on the ground that it is erroneous. Relief from an erroneous judgment is by appeal to the Supreme court. Russ v. Woodard, 232 N.C. 36, 59 S.E.2d 351."

In Bland v. Faulkner, 194 N.C. 427, page 429, 139 S.E. 835, page 836 (1927), the court stated: "Interlocutory orders, not finally determining or adjudicating rights of the parties are always under the control of the court, and, upon good cause shown, they can be amended, modified, changed, or rescinded as the court may think proper. Maxwell v. Blair, 95 N.C. [317], 318, and cases cited."

Applying these principles to the present situation, we think Judge Ervin's order was a discretionary interlocutory order that was subject to modification upon a showing of changed circumstances.

Since it is established that the order was an interlocutory one, the question remaining is whether there was a sufficient showing of changed circumstances to warrant modification of Judge Ervin's interlocutory order. Judge Baley's allowance of the motion for a continuance by the State was also a discretionary interlocutory order and was based upon an ample showing of changed circumstances. The August calendar was more crowded than usual and both the district attorney and the court proceeded with the trial of all scheduled cases with due diligence. Not only was the calendar filled with difficult cases, it also contained several serious cases in which the defendants had made requests for speedy trials under G.S. 15A-711(c) and the six-month time limit would have expired if the cases were not heard during the August session. Defendant's case could still be given attention within the six-month time limit if the trial were scheduled for the next succeeding session. Since defendant was already serving a five-year sentence on another charge, he was not prejudiced by such a delay.

In defendant's second assignment of error, we find no merit. He contends that the State did not proceed within six months after demand was made upon the solicitor for a speedy trial as provided under G.S. 15A-711(c). This statute states in its last provision that "[i]f the solicitor does not proceed pursuant to subsection (a) within six months from the date the request is filed with the clerk, the charges must be dismissed." Subsection (a) provides:

"(a) When a criminal defendant is confined in a penal or other institution under the control of the State or any of its subdivisions and his presence is required for trial, the solicitor may make written request to the custodian of the institution for temporary release of the defendant to the custody of an appropriate law-enforcement officer who must produce him at the trial...."

In the present case the State obtained from Judge Griffin a writ of habeas corpus ad prosequendum to the Commissioner of the Department of Correction on 27 October 1976. Defendant had filed his request with the clerk on 29 April 1976. The State complied with G.S. 15A-711(a) within the six-month limitation. The fact that the trial was not until 1 November 1976 was not a violation of this provision. The State proceeded within the six-month limitation when it made the request for the defendant on 27 October 1976. Furthermore, it does not appear that a copy of defendant's request was served on the district attorney as provided by G.S. 15A-711(c).

No error.

BROCK, C. J., and MORRIS, J., concur.